Blogging the Non-Adversarial Justice Conference Day 3

I decided to focus mainly on judging panels today – except for a session on legal practice where I am a co-presenter. Our first speaker in the first judging session I attended today was Judge Ian Dearden from the District Court of Queensland. He outlined his extensive workload and his circuit work. Much of his work is criminal. He described some of the therapeutic jurisprudence techniques he applies in judging. He noted that he had only heard of TJ comparatively recently but then appreciated that some of the judging techniques he was already using were applied therapeutic jurisprudence.

He shared with us a number of his therapeutic judging techniques in csentencing. Here are some of the tips that Judge Dearden kindly shared with us. He aims to give comprehensive sentencing remarks to inform defendants (and others) of the reasons for the sentence.

He is committed to giving courtesy and respect to all in the courtroom – even the most trying of individuals – and expects them to treat him likewise. He addresses defendants as “Mr X” or “Ms Y”. He gives sentencing remarks in the first person, seeing sentencing remarks as a way of speaking directly to the defendant – rather than in the third person as if writing for an appeal court. He translates legal language (used for the sake of an appeal court) into conversational language for the benefit of the defendant. He emphasised the importance of communicating with the defendant as another human being. It then becomes easier to communicate to the defendant why the defendant’s behaviour is wrong.

Where appropriate he refers to the power of love – particularly in the context of a family, where a family member has committed a crime which may be denounced by the family and yet remains the beneficiary of the unconditional love of the family.

In sentencing a defendant in relation to dangerous driving causing death, he follows the practice of Judge John Robertson of turning to the family of the deceased before delivering the sentencing remarks. He tells them that as far as any human being can, he understands their grief and their loss. He explains that he must sentencing according to precedent and statute but that one thing he could not do is to bring back the deceased. After a pause he then turns to the defendant and begins his sentencing remarks.

Judge John Walker from New Zealand spoke about bringing community justice principles into district courts. He described the work towards setting up a community justice centre in New Zealand. New Zealand judges had visited community courts at Red Hook, North Liverpool and Collingwood (Victoria) and asked themselves, “why can’t we do this here?” They then moved to consider how the principles be incorporated into any district court.

The judge emphasised the fact that judges receive their authority from the community and not from some mystical power. While the principle of judicial independence is important, judges also need to be part of their community for the trust the community places in them to be upheld. He referred to the problem-solving approach of these courts and the judicial application of therapeutic jurisprudence. He gave a fascinating account of the establishment of the first community court, the processes of engaging with the community, the establishment of the infrastructure and services.

The judge mentioned the importance of going into the community and listening to the different groups rather than saying they were there to consult. The result of this work with community groups identified a number of factors such as wanting to know more about what courts do, the importance of the court using collaborative processes, being open to using alternative processes, judges to have courage, a focus on what happens to offenders post-sentence. It was wonderful to hear about this powerful community-oriented focus and the development of the court processes and services to be offered.

He referred to a wise comment by a community member: “If you want to go faster, go alone. If you want to go further, go together”. What a great saying that embodies much of what cutting edge law, comprehensive law and non-adversarial justice is all about!

A judicial officer gave a compelling account of the challenges of being the judicial officer in a centre with a large workload and limited support services. I could resonate with the magistrate’s experience having been in a similar situation in Western Australia some years ago. The judicial officer highlighted some critical processes in promoting more therapeutic outcomes such as treating people with respect and condemning behaviour rather than the individuals involved. A technique the judicial officer uses to bring greater awareness to a defendant of underlying issues is to ask the defendant to tell his or her story.

My blog on the next two sessions is rather sketchy as I was participating as a co-presenter in one session and a presenter at the other. The first session was on non-adversarial justice and legal practice. We heard about interesting research conducted by Jill Howieson on the views of family law clients and their lawyers about their approach to legal practice. One of the key points from the research that impressed me is that clients want lawyers to be open to using non-adversarial processes and also, where appropriate, adversarial processes. Another paper by Judy Gutman discussed the varying challenges, practical and ethical, on lawyers seeking to take a non-adversarial approach, particularly in Australia. Adrian Evans and I presented a paper on therapeutic jurisprudence and the four legal ethical types presented in work by Christine Parker and Adrian Evans – the zealous advocate, the responsible lawyer, the moral activist and an ethics of care approach. While TJ seems most consonant with an ethics of care approach, we argue that it can be used by any of the lawyer types. We used a case example to demonstrate how law students could think about ethical issues associated with practice, the different lawyer types and therapeutic jurisprudence.

The next session I attended was on judging. Judge Eugene Hyman from California spoke of the challenges of judging in a domestic violence court. He described how therapeutic approaches can be used within the context of that court. The Chief Magistrate of Tasmania, Michael Hill, described two TJ related court programs in the Magistrates Court of Tasmania – a mental health list and a drug treatment order that requires participants with drug problems to engage in programs while under court supervision. My dear friend Steve Wilson – a pioneer in using TJ in judging in Western Australia – gave a fascinating account of his time on secondment as a magistrate to the Solomon Islands – describing the use of village justice as a precursor to some court cases, the ability of the court to promote reconciliation under legislation and the resource and cultural challenges in dispensing justice in the Solomon Islands. Inspiringly he described how lawyers in the Solomon Islands are becoming interested in TJ and suggested that there could be more wide-spread application of it over the next few years.

My paper asserted that until recently the interpersonal aspect of judging was largely ignored (with some judicial officers as notable exceptions) and that the focus was principally on judging’s technical aspects – evidence gathering, rule applying and outcome determining. Problem-solving courts, therapeutic jurisprudence and Indigenous sentencing courts have highlighted the therapeutic dimensions of the interpersonal aspect of judging. Other developments such as more child-friendly processes in criminal trials of charges of child abuse and equal opportunity bench books have also brought out other interpersonal aspects of judging. For example, prior to the introduction of more child-friendly processes arguably the ability of courts to gather and interpret the evidence of child complainants was compromised because the courts used evidence-taking processes that were not attuned to children’s developmental abilities and thus rendered the evidence less reliable. That is, the function of judging was compromised.

I asserted that the interpersonal should be recognised a vital aspect of all forms of judging. What interpersonal judicial skills need to be applied will depend on the particular judicial context. There needs to be an integrated approach to judging in all contexts – being mindful of the interpersonal as well as the technical – so as to promote more effective judging, in both therapeutic and functional respects.

Tom Barton, who has written extensively on preventive law and creative problem solving, gave an interesting presentation about problem-solving and prevention by general jurisdiction judges. Preventive law addresses legal risks from turning into a problem. It deals matters earlier in their life cycle than matters usually dealt with in court. But normally the problem arising is the usual basis for the intervention of a court. Further, the presentation of evidence and defining of the issues is principally in the hands of the parties to disputes before the court. He gave examples of how preventive law could be used by judicial officers – such as through use of powers to dismiss unworthy claims, judicial management processes and the power to refer lawyer disciplinary matters to the appropriate authorities. Some other examples challenged us in Australia where the power of a judicial officer to intervene in litigation and within the community is far more restrained than in the US.

He asked: can we imagine a new rule of law, a situation where “we can actually protect people better not by separating them but by putting them together, both interpersonally and with legal personnel of the state, in stronger, more healthy relationships”?

Tom Barton also spoke about the preventive lawyering approach to legal risks: the lawyer talks to the client, acquaint his or herself with anything with which the client is connected, build a better relationship thereby and also, by virtue of their training, identify potential risks.

It is the end of the conference. It has been a fascinating journey through the different fields of non-adversarial justice/comprehensive law. I am tired but satisfied, inspired and happy about how the conference has gone. Now it is time to go home to the family – who will no doubt be wondering “who is this stranger coming through the door?” That is it for the blog for now. Thank you for reading and a special thanks to the presenters and delegates for such a wonderful conference. When is the next one?